As the number of videos on social media that show defiance toward police officers increases, it is important for civilians to differentiate fact from fiction. Citizens who obtain drivers licenses should be aware of their rights and the potential penalties of defying the law. Because field sobriety tests and chemical sobriety tests may be deemed inadmissible or unreliable in court because of technical defects or issues administering the test, many drivers choose to take the test to avoid the immediate consequences of a refusal. To learn more about the possible consequences of refusing a breathalyzer or other sobriety test in New Hampshire, consider contacting an experienced criminal defense attorney at Naro Law. Call (603) 212-9480 to schedule a free confidential consultation.
Breathalyzer Testing With Suspicion of DWI
When a police officer suspects a person of being intoxicated while operating or attempting to operate a motor vehicle, he or she will look for signs of intoxication. These signs include slurred speech, red eyes, odors of alcohol or drugs, open containers or paraphernalia, erratic behavior, and confusion. If any of these signs are present, the officer may administer a field sobriety test, a chemical sobriety test, or multiple tests. These tests can provide the prosecutor with evidence of the impairment to present in court; however, if any of the tests is improperly administered, the judge may find no probable cause, or the jury may have reasonable doubt in the accuracy of the test.
Field Sobriety Tests
The field sobriety tests are the physical tests used to determine if a driver may be impaired. The Standardized Field Sobriety Tests (SFSTs), as standardized by the National Traffic and Highway Safety Administration (NTHSA), are performed roadside during a traffic stop to assist the officer in evaluating the possible impairment of a driver. The tests are typically performed in front of the police vehicle for safety, and also allow dash cameras to record the interaction for evidence. The three standard tests are as follows:
- Walk and Turn (WAT): This test assesses the driver’s coordination and his or her ability to follow instructions. The walk and turn involves taking nine steps heel-to-toe in one direction and then back in the opposite direction
- One Leg Stand (OLS): This test assesses the driver’s balance. The one leg stand, which usually takes less than a minute, involves standing with one foot lifted and counting as instructed by the officer
- Horizontal Gaze Nystagmus (HGN) Test: This test assesses the driver for involuntary eye movements that may indicate intoxication. The HGN test involves following a moving object, such as the police officer’s pen, with only the eyes
Chemical Sobriety Tests
There are three types of chemical sobriety tests that officers may use to gather evidence of a driver’s intoxication. The breath test is the most common. Officers can use handheld PBT devices—known as Preliminary Breath Tests or Portable Breath Tests—to measure the amount of alcohol a person has consumed based on the vapors in his or her lungs. The admissibility of PBT test results is an unsettled issue, but skilled attorneys are generally successful in preventing the results from being admitted. However, if a person blows into a PBT and later refuses further chemical tests, the results of the PBT are likely admissible to demonstrate that the person only refused further chemical testing because they feared the result based on the PBT.
For a more accurate measure, the Intoxilyzer 9000 device, an upgrade as of 2018, may be used at the police department. If your breath test result is .08 or above, you will be charged with “per se” DWI, which means that the State only needs prove that you drove a motor vehicle on a way in the State of New Hampshire with a blood alcohol content (BAC) of .08 or more. You will also be subjected to an administrative license suspension by the DMV. However, even if you blow under a .08, the police can still charge you with DWI, and will allege that you drove “impaired.” The breath test result, though under .08, will serve as evidence to prove you had alcohol in your system. If your result was .03 or less however, that is prima facie evidence that you were not under the influence. Of course, if your result is low on a breath test, the police may ask for a blood test to determine if your behaviors are caused by drug impairment, rather than alcohol.
Because the breath test only detects levels of alcohol, the arresting officer may need to administer other tests. The other possible chemical sobriety tests are the blood test, which also tests for drugs, and the urine test, which only tests for drugs. The results of these tests may be presented as evidence in court.
Is Refusing a Breathalyzer in New Hampshire Illegal?
Drivers in New Hampshire are subject to implied consent upon signing the paperwork to obtain a driver’s license. This means that, with their signature on that day, they have consented to chemical sobriety tests in the event that a police officer ever suspects that they are operating or attempting to operate a vehicle while under the influence of drugs or alcohol. However, drivers have a legal right to refuse a breathalyzer test or other chemical sobriety test.
Not only may refusing a breathalyzer make the driver look guilty in court, but refusal may also result in certain penalties. If the police officer has probable cause to believe that the driver is impaired and, therefore, can legally arrest the driver for DWI, then those penalties will apply.
What Happens If You Refuse a Breathalyzer in New Hampshire?
Refusing a breathalyzer, according to Chapter Saf-C 2800 (RSA 265-A:4) of the Rules and Laws for the New Hampshire Division of Motor Vehicles, will subject a driver to an administrative license suspension if he or she has been arrested for driving while intoxicated (DWI). This includes being under the influence of alcohol or any illegal, prescription, or over-the-counter drug. The first offense will result in a 180-day suspension, and a subsequent offense or prior administrative suspension, will result in a 2-year suspension.
Because a refusal results in an administrative suspension from the DMV, separate and apart from any court suspension from the DWI itself, the administrative suspension (ALS) will continue regardless of whether the driver is convicted of the DWI or not. In addition, the administration suspension cannot run concurrently with other suspensions if the result of a refusal was a test result of .08 or above. In this case, it will run concurrent to the DWI suspension. Therefore, the suspension for refusing a breathalyzer or other sobriety test will run after any suspensions that come with a conviction are complete. However, as with any DWI charge, it may be possible to fight a suspension for refusing a breathalyzer or blood test. A skilled criminal defense lawyer with Naro Law may be able to answer questions regarding license suspension and building a defense against DWI charges.
Contact a New Hampshire Criminal Defense Attorney Today
While young people on social media continue to promote blatant deviance toward police officers, it is important to understand that refusing a breathalyzer or other chemical sobriety test has possible consequences in court and at the DMV. The prosecutor will also attempt to convince the judge or jury that a refusal is an admission of guilt. The results of a field sobriety test or a chemical sobriety test may not be admissible in court due to problems with the test itself, so many drivers take the chance on the test to avoid the immediate consequences of refusing a breathalyzer or other sobriety test. If you have been charged with a DWI in New Hampshire, consider contacting the knowledgeable legal team at Naro Law by calling (603) 212-9480 to schedule a consultation.
